CAN WE DO BETTER THAN EVICTION? A Swift-Certain-Fair Approach to Nonpayment of Public Housing Rent

About a year ago I was in the Brookline District Court when I watched a family lose everything. At least I think that’s what happened; I suppose there might have been a fairy godmother lurking in the wings, but I doubt it. (Why is there never a fairy godmother around when you really need one?)

Brookline is a high-income town adjacent to Boston, with great public transportation, hardly any crime and a public school system so good that the town has employees dedicated to ferreting out residency fraud. Brookline has public housing, though, in which you will pay only a third of your after-tax income as rent, and given the advantages to living there, I would imagine that Brookline’s public housing tenants appreciate it.

Back to my day in court: the case was an eviction from public housing. Evictions in Massachusetts happen in a two-step process. First the landlord has to win the case, showing that the tenant violated the terms of the tenancy and he is entitled to have possession of the apartment returned to him. Then he has to ask for an execution on the judgment for possession: a piece of paper given to a constable who physically evicts the tenant. Since there’s not much to argue about in a non-payment case, most tenants opt for an agreement for judgment instead of a trial. The tenant promises to pay the rent each month while whittling down the arrearage, and when that’s accomplished, the eviction is dismissed. That’s what had happened in the case I watched. The tenant made an agreement months earlier, and he had not kept it.

This was the fourth time that the housing authority had come back to court on a motion for execution, so there had been five previous court appearances. The first time, the housing authority made the agreement with the tenant. He didn’t keep it. At the first motion hearing, the housing authority rewrote the agreement for a smaller payment toward the arrearage. The second time the authority agreed to give the family another chance. The third time, they asked for execution, but the judge quailed at putting this family on the street. She had issued a stern warning and denied the motion. And here we were for round four. The father of this family appeared and opposed the motion. He reminded the judge that he had five children, all school age. He was the sole wage earner; his wife was disabled and had a social security income. He didn’t have a clear answer for why the rent wasn’t paid– he had expenses. If evicted, he said, they had nowhere to go. The judge struggled. From the gallery I could see the emotions crossing her face as she checked the file. Yes, this was the fourth time. No, this wasn’t a case of exorbitant rent; since it is a percentage of income, he could have paid it. The lawyer sitting next to me whispered that he hoped the judge would give him another chance, and just then the judge spoke. “I can’t give you another chance,” she said. “Last time you promised. How many last chances can we give you?” And it was over with a signature. The look on the tenant’s face was horrible to see. He was stunned. Speechless. He had not seen this coming. A court officer tapped his arm and gestured toward the door. Before it closed behind him, I heard his bewildered voice: “She’s putting me out?”

From my time as a public housing lawyer, I can tell you that the eviction process started long before it came to court. First there are written reminders that the rent is in arrears. Then there’s a meeting with the housing authority director. Then some more reminders.
Finally a notice to quit, subject to a grievance procedure. If the tenant loses the grievance, he can still “cure” the notice to quit by paying the rent or offering a payment plan. The complaint is filed in court only after all these chances to abide by the lease, each accompanied by a threat of eviction. Now add a hearing at which the agreement was reached and three previous appearances on the landlord’s request for execution, and you can begin to understand why this man was shocked. He’d been told at least six times that he’d be evicted if he didn’t pay the rent, and every time that threat turned out to be a bluff. Until finally – inevitably, but unpredictably – it wasn’t.

Everything written about the failure of probation for low-level offenders applies to these evictions from public housing. It’s an all-or-nothing game right from the beginning: either the tenant is indulged or made homeless. Nothing in between. Judges flinch. Hell, I used to flinch, and the housing authorities were my clients. I realized the system was completely nuts when one honest tenant told me why she didn’t have the rent. “If you don’t pay the cable bill they cut you off,” she said. I tried. I told her that cable TV wouldn’t be much good without a roof over her head. She looked at me with pity, quite sure eviction was not on the horizon.

I’d like to try something different. Swift-Certain-Fair probation (HOPE, Sobriety 24/7) works because we jail the probationer briefly the very first time he violates, instead of spinning it out seemingly forever and then incarcerating him for a long time. Instead of relying on fines and late fees, why couldn’t we avoid making a family homeless by making them a little bit homeless for a little while? If the Brookline dad had found himself and his family locked out of their apartment for a few hours, it would have been a shock. Being locked out for a whole night would have been a truly awful experience. They probably would have had to stay with friends or relatives, maybe parceling out the kids. I wouldn’t lock tenants out for more than a night, and I wouldn’t do it the minute a rent payment was late, either. I’d do it as a consequence of violating the agreement for judgment, instead of going back to court. And – most important – I wouldn’t do it as a surprise. The tenant should absolutely know that if the rent isn’t paid by Tuesday at 5 the unit will be locked until Tuesday at 10; the next time he should know that if he doesn’t pay by Thursday at 5 it will be locked for the next 24 hours. Every time. No argument.

When I’ve floated this idea, people react with horror because it’s so mean. Well, yes. I don’t have any children, and I could stay in a hotel, but the thought of being locked out of my house for a night is appalling. I think lockouts are a good idea precisely because homelessness is so awful. If spending one night locked out of your apartment seems unendurable, imagine what it feels like to see the eviction truck pulling up. In case you’ve never seen one, an actual eviction is brutal. And all the evidence we have suggests that a temporary lockout option would lead to fewer evictions. If the choice is between paying the rent and paying the cable bill, let’s have the tenants choose paying the rent.